Calcutta High Court
Syed Fateyab Ali Meerza vs Union Of India And Others on 6 November, 1990
Equivalent citations: AIR1991CAL205, AIR 1991 CALCUTTA 205, (1990) 1 CAL LJ 411 (1990) 2 CAL LJ 411, (1990) 2 CAL LJ 411
ORDER
1. The writ petitioner is the brother of Waris Ali Meerza, the third Nawab Bahadur of Murshidabad, who died sometime in 1969. The case of the petitioner is that he claims to be the present Nawab Bahadur of Murshidabad and Amir-ul-Omrah by virtue of succession from Syed Hassan Ali Meerza, the last Nawab Nazim of Bengal, Bihar and Orissa and the first Nawab Bahadur of Murshidabad as per the following genealogical table :--
Fedoon Jah Mansoor Ali d 1884 | Sir Hassan Ali Khan (1St Nowad dt. 1906) |
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Wasif Ali Meerza Nasir Ali Meerza
(Second Nawab d. 1959) (No son) dt 1945
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Waris Ali Meerza Fetehyab Ali Meerza Kazem Ali
(Third Nawab) (Born (Petitioner) Meeza
1000 d. 20.11.69) (Born 1911)
The petitioner's great grandfather Faridoon Jah Syed Mansoor Ali Khan was the Nawab Nazim of Bengal, Bihar and Orissa and was an independent ruler of Subah-e-Bangala and the owner of moveable and immoveable properties including personal stipend payable by the then Government of India under treaty rights. The Estate of the said Nawab Nazim included a large palace, at Murshidabad named as Hazar Duari and other places in Bengal, Bihar and Patna and the present premises No. 85, Park Street, Calcutta. Besides the said estate included articles of art, curio, antique and pictures lying in Hazar Duari. By a registered Deed of Gift dated 14th January, 1874 the said Nawab Nazim abdicated and relinquished all his rights, titles and interests appertaining to his Nawabship in favour of his elder son, Syed Hassan Ali Meerza, who thereupon succeeded his father as the Nazeem of Bengal, Bihar and Orissa.
Certain differences arose between Syed Has san Ali and the then Government of India in respect of matters appertaining to position, status and affairs of the Nawab Nazeem and the members and the dependents of his family but ultimately those differences were settled between Syed Hassan Ali and the Secretary of the State for India-in-Council on terms re corded in an Indenture made on 12th March, 1891. In the said Indenture of 1891 the titles of Nawab Bahadur of Murshidabad and Amir-
ul-Omrah was granted to Syed Hassan Ali by the Viceroy and Governor-General. The said titles carried with them the precedent, rank and privileges and were descendible to the lineal male heirs of the said Syed Hassan Ali according to the custom of primogeniture. It was also agreed in the said Indenture that for the purpose of support and maintenance of the owner and dignity of the Nawab Bahadur of Murshidabad and the Amir-ul-Omrah he would receive: (a) an annual payment of Rs. 2,30,000/- from the then Government of India; (b) the income of immovable properties in the First and Second Schedules which included Hazar Duari; and (c) the income of immoveable properties mentioned in the 3rd Schedule i.e. as purchased with the sale proceeds" of the jewels.
2. According to the petitioner it is further stated that the said Indenture also contained that the maintenance and support of the aforementioned titles and positions and stations thereto attaching and of the honour and dignity thereof, the said annual amount would be paid for ever from the revenues of the Government of India to the Nawab Bahadur and his lineal heir male in perpetuating in equal monthly instalments of Rs. 19,166 -- 10 annas -- 8 pies. The said Indenture also contained a specific declaration according to the petitioner that the further properties purchased with the sale proceeds and immoveable properties mentioned in the 3rd Schedule shall for ever be held and enjoyed by the said Nawab Bahadur. At the same time the Indenture in question contained an important clause that the said Nawab Bahadur nor any of his successor in the said titles shall sell, mortgage or alineate otherwise the said properties.
3. Soon thereafter the said Indenture was converted into the Moorshedabad Act, 1891 confirming the Indenture dated 12th March, 1891. Section 5 of the said Act specifically stated that all properties mentioned in the said Indenture shall descend and be enjoyed for ever by the Nawab Bahadur of Murshidabad for the time being. According to the. petitioner the effect of the Moorshedabad Act, 1891 read with the aforementioned Indenture was to guarantee the payment of the said annual pension and/or annuity of Rs. 2,30,000/- per annum and to secure a vested right to the scheduled properties; in other words the Indenture was confirmed as an Act, namely, "descendible to the lineal heirs male of the said Nawab Bahadur according to the cutoms of primogeniture, the eldest male of the eldest branch being preferred." It is further stated that there was no question of any discretion in this matter to be exercised by the Government and the line of succession was a matter of law as confirmed by the Act of 1891 and the Government of India was bound to recognise the eldest male of the eldest branch of the said Nawab Bahadur Sir Has-san Ali as the Nawab of Murshidabad, each time a succession is opened out on the death of a Nawab.
4. After the death of Nawab Sir Hassan Ali Meerza, his eldest son Syed Wasif Ali Meerza became the second Nawab Bahadur of Murshidabad enjoying the rank, dignity, privileges and annuity till his death in 1959. In 1935 the Indian Legislature passed the Moorshedabad Estate Administration Act, 1933, inter alia, appointing a Manager on behalf of the Secretary of the State for India for the management of the properties of the Nawab Bahadur and to afford protection against the liabilities to which the Nawab Bahadur was exposed by reason of his debts. The said Act of 1933, inter alia, contained that the local Government might enter upon the immoveable properties of the Estate in accordance with the provisions of Moorshedabad Act of 1891. By an Order published in the Calcutta Gazette the Government could appoint an officer for the management on behalf of the Secretary of State for India for the whole or any portion of the properties and of rents issues and profits thereof and for receipt and application of the monthly sum of Rs. 19, 166--10--8 pies payable from the Government Treasury at Berhampore. It is further stated that in the event of the death of the Nawab Bahadur the management should not continue for more than sixty days. Since 1933 the Managers appointed under the Act of 1933 managed the said Estate.
5. The petitioner further states that by virtue of Chapter III of the Government of India Act, 1935 the properties of the Murshidabad Estate vested in the then Government of Bengal. Under Article 8 of the Indian Independence (Rights, Properties and Liabilities) Order, 1947 on the establishment of the Dominion of India the Indenture of 12th March, 1891 was to have effected as if the same had been made on behalf of the Province of West Bengal. Thereafter several Acts including the Moorshedabad Act of 1946 and the Murshidabad Estate Administration (Amendment) Act of 1959 were passed for better management of the properties of the said Estate. In spite of the aforesaid Acts there was no break in the payment of the annual annuity till the death of the third Nawab Waris Ali Meerza. The second Nawab Wasif Ali Meerza made representations to the Government West Bengal for the release of the properties because of its mismanagement. Upon the death of the third Nawab Syed Waris Ali Meerza on 20th November, 1969, the petitioner being the son of the second Nawab Wasif Ali Meerza, the management of the Estate of Murshidabad should not have remained in the hands of the Manager for more than sixty days in terms of the Act of 1933 and the possession of the properties should have been restored to the eldest surviving son of the second Nawab Wasif Ali Meerza i.e. the petitioner. By Murshidabad Estate Administration (Amendment) Act of 1959 the relevant Section 5 of the Act of 1933 was deleted by adding a proviso so that the properties might not be restored to the third Nawab Bahadur of Murshidabad Syed Waris Ali Meerza within 60 days as aforesaid. The said Nawab Bahadur of Murshidabad challenged the Amendment Act of 1959 in this Hon'ble Court and obtained Rule being C. R. No.435(W) of 1962.
6. The West Bengal Legislative Assembly passed the Murshidabad Estate (Trust) Act, 1963 which got the assent of the Governor on 18th February, 1963 but no assent by the President was obtained. The main features of the Act of 1963 according to the petitioner were as under:-- (a) the purpose of the Act was to create a Trust in respect of the properties enjoyed by the late Nawab Bahadur of Murshidabad; (b) it was no longer necessary to make provision for the maintenance of the honour and dignity of the Nawab Bahadur of Murshidabad; (c) the late Nawab Bahadur desired that on his death a trust should be created in respect of all the properties enjoyed by him for the benefit of his sons and daughters; and (d) in keeping with the desire of the late Nawab Bahadur this Act of 1963 was enacted. The said Act created the provision of Official Trustee and further stipulated that from the appointed date all properties of Murshidabad Estate should vest in the Trustee to be held for the benefit of the sons and daughters of the late Nawab Bahadur. The Trustee shall receive the monthly sum of RS. 19,166--10--8 pies and shall also receive and recover rents issues and profits from the said Estate. On vesting of the properties of the Murshidabad Estate the Trustee subject to the provisions of the Act and Rules thereunder manage and administer the Trust (Murshidabad Estate Properties) and income therefrom; all litigations in respect of Trust should be done by the Trustee; the Trustee would be entitled to dispose of, with the previous approval of the State Government, in trust properties; would manage and administer the Trust and the income therefrom, repairs and improvements of the Trust properties other than Mosques and Imambarahs; would satisfy from the resources all liabilities, debts, taxes, etc. including decree, order or judgment of the Courts; and to the Imambarah's Committee hand over money for the maintenance of Mosques and Imambarahs for religious ceremony as might be specified by the State Government. The most relevant part of this Act is that after receiving the monthly allowances, as referred to hereinbefore, and after spending the amount on the subjects some of which were mentioned above, of the remaining allowances a sum of Rs. 3,000/- per month will go to the Nawab Bahadur; a sum of Rs. 2,000/- per month to each of the sons of the late Nawab Bahadur including the present Navab Bahadur; and a sum of Rs. 500/- per month to the daughters of the late Nawab Bahadur. As regards the residential houses and buildings the Wasif Manzil Palace at Murshidabad and premises No. 85, Park Street, Calcutta, would be used and occupied by the Nawab Bahadur; the Moti Mahal at Murshidabad by Syed Kazim Ali Meerza, one of the sons of the late Nawab Bahadur; and the Mahal Sarah also known as Amir Mahal at Murshidabad would be used and occupied jointly by other sons and daughters of the late Nawab Bahadur. The Act also contained a schedule of properties of the Murshidabad Estate as referred to under Section 2(1) of the said Act. This Act repealed the Act of 1891, the Act of 1933, the Act of 1946 and the Act of 1959.
7. The said Act of 1963 was further amended by the Murshidabad Estate (Trust) (Amendment) Act, 1963 and some of the major amendments were as under:-- the payment of a lump sum of Rs. 6 lakhs from the State to the Nawab Bahadur on the vesting of the trust properties; a monthly sum of Rs. 1,200/- to the sons of the late Nawab Bahadur by his wife of Nikah marriage; a monthly sum of Rs. 500/- to the daughter of the late Nawab Bahadur by his wife, the Nawab Begum of Murshidabad; a monthly sum of Rs. 400/- each to the daughters of the late Nawab Bahadur by four of his wives by Nikah marriage; and a monthly sum of Rs.500/- to Muzzafar Jah Syed Sajid Ali Meerza, the son of the late Nawab Bahadur by his Muta marriage.
8. The contention of the petitioner is that both the aforesaid Acts of 1963 are incompetent legislation and ultra vires the Constitution. The third Nawab Bahadur of Murshidabad Waris Ali Meerza challenged the Murshidabad Estate (Trust) Act, 1963 in the Hon'ble Supreme Court in Writ Petition No. 20 of 1969 but he could not proceed with it because of his death and the Rule was discharged. The petitioner challenges that the Official Trustee has been unlawfully thrust upon the Murshidabad Estate and the Act of 1963 has miserably failed to achieve, its purported objects which was to effect the wishes of Wasif Ali Meerza to create a trust for the benefit of his successors and his sons and daughters. The petitioner has levelled allegations of acts of mismanagement, waste and gross negligence against the Trustee including the increase in the liabilities of the Estate more than Rs. 30 lakhs and disappearance of historical articles and antiques of estimated cost of Rs. 1 crore which fact was also published in the newspapers and discussed in the West Bengal Legislative Assembly. The Trustee is said to have instituted legal proceedings in the City Civil Court at Calcutta for ousting the petitioner from his Calcutta residence at 85, Park Street.
9. The main contention of the petitioner is that the third Nawab Syed Waris Ali Meerza died on 20th November, 1969. He-had married a Jewess Lady by whom he had two sons, Akhtar Jah Syed Wakif Ali Meerza alias Sunni and Syed Wakar Ali Meerza alias Chippu, who are residing in the United Kingdom and are British citizens. It is alleged at the same time that they do not profess the religion of Islam and as such their father disinherited them by a Deed dated 9th July, 1963. After disentitlement of the rights and titles arising out of the custom of primogeniture under the Shia Muslim religion they have no right to claim the Nawabship, The contention of the petitioner Syed Fateyab Ali Meerza is that he is the next immediate brother of the third Nawab Bahadur of Murshidabad Syed Waris Ali Meerza and the second son of the second Nawab Bahadur of Murshidabad Wasif Ali Meerza and therefore the petitioner is the direct eldest lineal male descendant of Sir Syed Hassan Ali Meerza the first Nawab Bahadur of Murshidabad. According to the petitioner, on the death of his elder brother Waris Ali Meerza he is entitled under the Murshidabad Act, 1891 on the basis of the custom of primogeniture to succeed the titles of the Nawab Bahadur of Murshidabad and Amir-ul-Omrah and is also entitled to get all the benefits secured under the Act of 1891. Several representations were made to the Government of India by the petitioner claiming recognition of the title of Nawab Bahadur and the payment of the aforesaid annuity. When no response came from the Government of India, the petitioner moved the Hon'ble High Court and a Rule was issued being C.R. No. 10165(W) of 1981. The petitioner contends that he is presently residing at 85, Park Street, which is the ancestral property and a part of the Murshidabad Estate. The State Government intended to requisition the lawn of the petitioner's house under the West Bengal Land (Requisition and Acquisition) Act, 1948 and such attempt was restrained by an Interim Order of Injunction by this Hon'ble Court. In the meantime the Murshidabad Estate (Management of Properties) and Miscellaneous Provisions Act, 1980 was passed and was given effect to on 1st August, 1985 and this very Act is under challenge in this writ petition as ultra vires the Constitution on more than one point, namely, there is no reference to the rank or title and the annual annuity of Rs. 2,30,000/- guaranteed by the Act of 1891 and that on the appointed day when the said Act would come into force the properties of the Murshidabad Estate would stand transferred to and vest in the State. The petitioner strongly challenge the illegal vesting of the Estate without payment of any compensation. It is further stipulated in the Act that Estate Manager shall exercise the power on such terms and conditions as the State would determine. If the Estate Manager is of the opinion that some persons are in unauthorised occupation of any portion of the State then they should be evicted in accordance with the procedure under the Act; alternative accommodation for bona fide residential purposes shall be provided to such surviving sons and daughters of the late Nawab Bahadur who are beneficiaries under the Act of 1963 but provided that such son or daughter does not own any pucca house in West Bengal. It is very much the case of the petitioner that Section 3 of the Act of 1980 is unconstitutional as its purpose is to confiscate the private property without any compensation in violation of law as well as several Sections of the said Act as contained in paragraph 48 of the writ petition are violative of Article 14 of the Constitution. It is also stated that the Chief Secretary has handed over the management of the Hazar Duari Palace and the Imambarah at Murshidabad to the Director-General of Archaeological Survey of India which the State Government has no power to do. Hence the prayer to declare the Murshidabad Estate (Management of Properties) and Miscellaneous Provisions Act, 1980 ultra vires and void with consequential relief.
10. The respondents Nos. 2 to 4 filed an affidavit-in-opposition denying the allegations of the petitioner. It is stated that after the death of Waris Ali Meerza the petitioner has no locus standi to claim the Nawabship of Murshidabad nor the claim and the counterclaim of relationship of the last Nawab have yet been settled in any Court of law in a number of cases. It is stated [hat the petitioner not being the Nawab of Murshidabad has no right to reside at premises No. 85, Park Street, particularly after the withdrawal of permission given to him by the Government by letters dated 25th January, 1973 and 12th January, 1979. It is contended that the Act of 1980 could not be enforced till 31st July, 1985 on administrative reasons. So far as the constitutionality of the Murshidabad Estate (Trust) Act, 1963 (amended thereafter) is Concerned it repeated all the previous Acts of 1891, 1933, 1946, 1959 and 1973. The State respondents describe the petitioner as unauthorised occupant of 85, Park Street, but could not evict him. It is stated that in accordance to Section 13 of the Act of 1980 the Hazar Duari Palace and the Imambarah at Murshidabad were handed over to the Director-General of Archaeological Survey of India and the Director of the Antiques and Museums on 17th August, 1985. In substance all the allegations have been denied and the petition is said not to be maintainable.
11. In a Supplementary Affidavit the State respondents stated that the Hon'ble High Court has decided in C.R. No. 10168 (W) of 1981 that the petitioner was not the Nawab of Murshidabad and could not claim to be a Nawab or any right, title or interest of a Nawab. It is alleged that the petitioner has misused the advantage by obtaining injunction in respect of the property at 85, Park Street. The petitioner did not submit the list of tenants as was directed by Mr. Justice Suhas Chandra Sen by an Order dated 30th August, 1985 and violated the said Order by inducting tenants in the said premises. It is further stated that though the petitioner claims 85, Park Street, as his ancestral property but it does not hold good because of his claim and right as a Nawab. The Murshidabad Estate had never been treated as ancestral property which is subject to Muslim Personal Law. Even under the Moorshidabad Act, 1891 the Secretary of State for India entered upon the immoveable properties and a Manager was appointed to administer the properties. The Murshidabad Estate is a creation of statute and can be abolished and the Nawab has no right to administer the Estate because repeated attempts for such order were tested and rejected by the Hon'ble High Court and the Privy Council. Under the management of the State the Estate has shown good result of income everywhere as stated in paragraph 5 thereof. It is further stated that the servants and employees of the State are better paid now and are getting service benefits like the State Government employees. Referring to Sections 8 and 9 of the Murshidabad Estate (Management of Properties) and Miscellaneous Provisions Act, 1980 it is claimed that the same is at par with those of eviction under the Unauthorised Occupants Act (Public Premises) Act, 1971 where a Sub-Divisional Officer are given the powers in the Rules framed. Under the Act of 1980 the Estate Manager has also been Made an officer of rank and grade of S.D.O. or Assistant Sessions Judge.
12. An application was filed on behalf of the Murshidabad Estate Tenants Association represented by one Benoy Lal Ghosh to be added as party respondents but I do not find any order on the application nor anybody appeared on behalf of the Association at the time of the hearing. The Union of India also did not file any affidavit-in-opposition but argued the case vehemently against the contention of the petitioner.
13. Mr. P.K. Das, the learned Counsel appearing for the petitioner, effectively placed the case of the petitioner. He attacked the Murshidabad Estate (Management of Properties) and Miscellaneous Provisions Act, 1980 which came into force in 1985 as ultra vires the Constitution as it offends Article 14 on the ground of discrimination. The Act confers unguided, uncanalised and unchartered powers to the Estate Manager which are arbitrary and liable to be struck down. He placed before the Court some important dates and relevant events relating to the case. He submitted that by the Indenture of 1891 the British Government of India took over the bulk of the properties of the then Nawab Bahadur of Bengal, Bihar and Orissa for payment of his debts and other liabilities and the confirment of the title of Nawab Bahadur of Murshidabad and further entitlement to retain the properties including premises No. 85, Park Street (previously 47, Park Street), Calcutta, and an annuity of Rs. 2.30 lakhs descendible to the lineal male heirs of the Nawab Bahadur according to the custom of primogeniture, the eldest male of the eldest branch being preferred. The said Indenture read with Moorshedabad Act of 1891 clearly indicates the affirment of the Indenture in the said Act of 1891. The Murshidabad Estate (Trust) Act, 1963 was enacted for creation of a trust in respect of the properties of the late Nawab Wasif Ali Meerza for the benefit of his sons and daughters according to his desire. The learned Counsel submitted that this Act of 1963 is important in deciding the instant case. The learned Counsel further submitted that after the enactment of the Act of 1963 the beneficiaries of the Murshidabad Estate and/ or of the properties thereof were the sons and daughters of the late Nawab Bahadur of Murshidabad i.e. Wasif Ali Meerza (d. 1959). This position was recognised by the Calcutta High Court in a judgment delivered by the Hon'ble Mr. Justice Bhagabati Prasad Banerji which judgment if final and binding on the State of West Bengal (1989 (1) CLJ 214). It is specifically stated in the said judgment that the sons and daughters of Wasif Ali Meerza are the beneficiaries of the properties of the Murshidabad Estate including premises No. 85, Park Street; and the petitioner is one of the sons of the late Nawab Bahadur Wasif Ali Meerza. The new Act i.e. the Act of 1980 was enacted to extinguish the Trust created under the Act of 1963 and thus depriving the petitioner from the properties and other benefits enjoyed under the Act of 1963 and taking away the properties without compensation and the entire Estate was vested in the State Government.
14. Mr. Das further submitted that the Act of 1980 is of confiscatory nature because It answers the question "to pay, or not to pay" in the negative. It is arbitrary and oppressive in nature because of no guideline for the exercise of the powers of the Estate Manager. He further contended that although Article 31 has been deleted from the Chapter of Fundamental Rights by amendment of the Constitution and inserting Article 300A instead but in any case the right to get compensation at least for the acquisition of property by the State in exercise of the power of "eminent domain" has not been taken away (Basantibai Fakirchand Khetan v. State of Maharashtra, (DB). In support of his contention he cited some decisions and authorities According to him for acquisition of private compensation is a "must" and only on this ground the Act of 1980 is hit by Article 14 and is liable to be struck down. He further submitted that Article 14 is a clear safeguard for not giving compensation and on this ground the Act of 1980 is too enropped (sic). The absence of this particular provision in this particular Act made it defective and bad in law. He referred to several decisions where compensation must be paid for compulsory acquirement of property by the State. In this connection it may be mentioned that the decision on appeal was reversed by the Supreme Court on a totally different point, not at all dealing with the payment of compensation. There the Supreme Court reversed the decision purely on the point that the Maharashtra Housing and Development Act, 1977 was protected from challenge under Article 14 by virtue of Article 31C of the Constitution. Mr. Das repeatedly argued that in the name of the management of properties the State nakedly confiscated the properties which are the petitioner's private and personal properties and that too without payment of compensation.
15. One more point taken by Mr. Das is that an "unauthorised occupant" has not been defined in the Act of 1980 and on this point he cited the case (State of Madhya Pradesh v. Baldeo Prasad), popularly known as the Goonda case, as a direct authority. In this case there was no definition of "Goonda" and in the Murshidabad's case also there is no definition of "unauthorised occupant" in the Act of 1980. No right of appeal has been provided in the said Act against the decision or order of the Estate Manager leaving the so called unauthorised occupant or occupants at the mercy of the Estate Manager. He also referred to the famous case of Keshavananda Bharti v. State of Kerala where the Supreme Court held that the basic structure of the Constitution cannot be unsettled. He submitted that even a guideline as supplementary executive instructions cannot cure the fundamental point of unguided discretion in a statutory provision. He submitted that the concept of locus standi has undergone enormous change after the Supreme Court decision in the Transfer of Judges Case and a person with bare interest with a minimum nature can challenge the vires of any Statute. On the aforesaid submissions the learned Counsel prayed for relief as made in the writ petition.
16. Apart from the aforementioned decision learned Counsel also referred to some of the cases noted as under:-- (1) Lakshmi Moni Das v. State of West Bengal (FB); (2) P. Vajravelu Mudaliar v. The Special Deputy Collector for Land Acquisition, West Madras, ; (3) State of Maharashtra v. Basantibai ; (4) State of Madhya Pradesh v. Baldeo Prasad ; (5) Satwanta Singh Sawhney v. D. Ramarathanam, Assistant Passport Officer, New Delhi, ; (6) Hamdard Dawakhana v. Union of India, ; (7) Ramlal Golapchand Saha v. The State of Gujarat, ; (8) Senior Suptd. of Post Office v. Izhar Hussain ; (9) Maula Bux v. State of West Bengal, and (10) S. P. Gupta v. President of India, .
17. Mr. S.C. Bose, the learned Counsel appearing for the Union of India, made a forceful argument on the constitutional aspect of this case. He submitted that the Indenture of 1891 between the Secretary of State-in-Council and the then Nawab Nazeem of Bengal, Bihar and Orissa was incorporated in the Moorshedabad Act, 1891 providing maintenance of dignity and honour of henceforth Nawab Bahadur of Moorshe-
dabad of Bengal. The sura of Rs. 2,30,000/- to be paid to the Nawab Bahadur would descend upon the lineal male descendants of the Nawab Bahadur according to the custom of primogeniture, the eldest male member of the eldest family being preferred and the properties mentioned in the Schedule would be held and enjoyed by the Nawab Bahadur, and also descend upon descendants who would have a beneficial interest for enjoyment. Dealing with the history of constitutional provisions for acquisition and requisition of property and payment of compensation, he referred to the deletion of Article 31 as well as Article 19(1)(f) of the Constitution by the Constitution (44th Amendment) Act, 1944 and insertion of Article 300A with no provision so far the payment of compensation is concerned. The learned Counsel referred to the statement of Objects and Reasons of the Constitution (26th Amendment) Act which says: "Concept of rulership that Privy Purse and special privileges are related to any current function and social purposes was incompatible with egalitarian social order. The Government therefore decided to terminate the Privy Purse and privileges of the rulers of former Indian States." The Moorshedabad Act, 1891 continued in force in accordance with the provisions of Section 296 of the Government of India Act, 1935 with the proviso that the competent legislature could amend or vary the Act of 1891. Under Section 177 of the Act of 1935 the agreement entered between the Secretary of State-in-Council and the Nawab Bahadur of Murshidabad became an agreement between the Province of Bengal and the Nawab Bahadur as Annexure 'A' to the writ petition indicates. Under Section 18(3) of the Indian Independence Act, 1947 and Article 372 of the Constitution (which is similar to Section 296 of the Act of 1935), the Moorshedabad Act, 1891 continued subject to a power of amendment and/or variation by a competent legislature. After the commencement of the Constitution, the Act of 1891 came within the jurisdiction of legislation of the State Legislature of West Bengal under different entries in Lists II and III of the 7th Schedule of the Constitution. By Murshidabad Estate (Trust) Act, 1963 enacted by the West Bengal Legislature the petitioner was conferred with some benefits, namely, receiving monthly stipend under certain circular besides the right of residence in Mahal Sarah along with other heirs of the late Nawab Bahadur who died in 1959. Mr. Bose argued that the Murshidabad Estate (Management of Properties) and Miscellaneous Provisions Act, 1980 is neither arbitrary nor unconstitutional and there is no constitutional requirement to pay any other benefit of compensation in any event except the benefit as provided in the said Act. It is further argued that by the Act of 1891 nothing was conferred on the other heirs or members of the family of Nawab Bahadur except the eldest male lineal descendants of the Nawab Bahadur according to the custom of primogeniture. The subject-matters of the Acts of 1963 and 1980 are confined only to the properties included in the Indenture of 1891 and no private property of the petitioner is affected by these Acts. In the Act of 1963 it would appear that a provision was made for certain sums which should be paid only after the expenses were met. Also in the Act of 1980 alternative residential accommodation have been made. It is further submitted that Privy Purses and other benefits of about 564 rulers of the former Indian States were abolished as a consequence of their executing the instrument of accession to the Union of India and also the entire Zamindari system was abolished but though the petitioner did not come within that category even then some benefits have been provided in the Act of 1980. It is submitted that in deciding the question of discrimination raised by reason of Article 14 the Court should amongst other things take judicial notice in the matter of common knowledge, matters of common report, of the history of the times etc. and the Counsel relied upon the decision in the case of Ram Krishna Dalmia v. Justice Tendulkar . In the submission of Mr. Bose a grant of stipend of Rs. 2,000/- to the petitioner under the Act of 1963 on having a surplus amount does not suffer from the vice of arbitrariness because the petitioner has only a beneficiary interest and no other" right to property as alleged. He also refers to the case of Gyan Singh v. State of West Bengal (90 Cal WN 226) which, according to the learned Counsel of the petitioner, was disapproved by the Full Bench in the case of Lakshmi Moni Das v. State of West Bengal. But it is rebutted by the learned Counsel as not being the correct position. It was further submitted that the decision was reversed by the Supreme Court in . It is further said that reliance upon (Commissioner v. State of Bihar) which has approved the case of the House of Lord in Attorney-General v. De Keysers Royal Hotel is wholly inappropriate so far this case is concerned (1920 AC 508). Mr. Bose finally concluded that if as a matter of fact it is proved that there is surplus and the State Government is not giving any direction in that case, the petitioner may if so advised claim the same and it would be a duty upon the State Government to make direction for payment but that does not make the provisions of the Act of 1980 invalid.
18. Mr. Habibullah, the learned Counsel appearing for the State respondents, submitted that though the petitioner started his claim as the Nawab Bahadur of Murshidabad and on premises No. 85, Park Street, as his ancestral property and that the West Bengal Legislature was not competent to pass the Act under challenge but he quickly shifted his position and concentrated mainly on three points, namely, compensation, arbitrary power of Estate Manager and no provision of appeal in the Act of 1980. He questioned the locus standi of the petitioner to challenge the Act. He submitted that no vested right of anybody is being infringed. The Act of 11391 was based on two objects: To maintain the honour and dignity of the Nawab Bahadur and to safeguard the Estate against mismanagement and extravagance. So far as the maintaining of the dignity of the Nawab is concerned that has gone with the abolition of Privy Purses and observations of the Supreme Court as pointed out by the learned Counsel for the Union of India, Mr. Bose. Now so far the Murshidabad Estate is concerned the question does arise whether it is the property of the Nawab or not. The history of the Act of 1891 is that the estate became heavily encumbered and therefore a statutory estate was created in 1873. First the British Government as sovereign power intervened by enacting Debts Act, 1873 and therefore came the Act of 1891 giving no absolute right over the properties except limited right of "user". It is disclosed that the then Nawab Bahadur challenged the position before the Privy Council and the Privy Council held that it is the prerogative of the Secretary of the State under the Government of India Act, 1935, and the estate was brought under the management of a Manager and continued so till 1963. Mr. Habibullah submitted that if the then Nawab had no claim, the petitioner also cannot claim the same. It is repeated that no property of the Murshidabad Estate is ancestral or private in nature. Under the Act of 1963 the petitioner is given a licence for life to reside in Murshidabad at Mahal Sarah along with others and not in Calcutta. After the West Bengal Estate Acquisition Act came into force the income of the Murshidabad Estate started dwindling. The employees were paid very low and the Trust Act of 1963 could not save the situation because the Official Trustee lacked power, and the Hazar Duari was in a very pitiable condition.
19. The learned counsel for the State submitted that the Act of 1980 was passed having two objects in view, that is, to keep safe Hazar Duari and to keep the management of the Estate from collapse and as such the Act of 1963 was repealed. The then Nawab Bahadur challenged the Act of 1963 in the Supreme Court on the grounds that it gave benefits to other sons of the Nawab which was not guaranteed in the Act of 1891 (as the said Nawab died during the pendency of the case in the Supreme Court as such this point is not very relevant). The points made out by Mr. Habibullah mainly revolve round the fact that after the vesting of the Estate to the State of West Bengal as statutory State there is no longer any necessity of maintaining dignity of the Nawab Bahadur. The petitioner has no right of ownership or any vested right even of limited nature in the State. The Estate Manager has no absolute power but is a purely quasi-judicial in nature like the tribunal. The contention of the learned counsel of the petitioner is denied that premises No. 85, Park Street, was a separate personal estate of the Nawab Bahadur and it was to be treated differently as residence of not only the Nawab Bahadur but also the other members of his family. The premises No. 85, Park Street, was never treated as personal property of anybody and was included in the Schedule I without any special noting against this property, and the Corporation taxes and other charges including maintenance etc. were paid from the funds of the Murshidabad Estate.
20. Mr. Habibullah further contended that under the Nawab Nazim's Debts Act, 1873 the Commissioners submitted a report stating, inter alia, that the property acquired by means of the Nizamath Deposit Fund i.e. from the portion of annual allowances which was appropriated to the family as distinguished from the Nawab Bahadur's own stipend is not the Nawab Bahadur's sole and absolute property but he had only a life-interest. He further stated that the Schedule III of the Act of 1873 contained the personal properties of the Nawab Bahadur excluding 85, Park Street, or any of the properties included in 1891 Act. While referring to the judgment of Mr. Justice Bhagabati Prasad Benerji in C.R. No. 14049 (W) of 1983, he submitted that there is no finding that 85, Park Street, has any separate status apart from other Estate properties. There the petitioner's claim was that he is the claimant to the title of the Nawab Bahadur and that judgment cannot come to the rescue of the petitioner if he relies on the Trust Act. In the instant writ petition the petitioner has challenged not only the Act of 1980 but the Trust Act of 1963 as well. He has been informed by the Government of India that his prayer of the title of Nawab Bahadur of Murshidabad and annuity have been rejected and therefore he cannot have any claim to challenge the Act of 1980 or can have any claim on any property of the Murshidabad Estate. It is further contended that the petitioner himself denies any benefit either in the Act of 1963 or the Act of 1980. He further submitted that the petitioner's claim that consequent to the repeal of the Act of 1891 the properties would revert back to the heirs and successors of the original owner without any restriction with their power of alienation is absolutely untenable. The power of alienation was not there even before the Act of 1891 and also by virtue of the Act of 1873, and by the declaration of the Commissioners even the Nawab was not accepted as owner. So far the question of compensation is concerned the cases cited before the Court relate those properties where claimants had absolute heritable right, title and interest but the petitioner has no such claim in the Murshidabad Estate. A claim by a mere beneficiary cannot be compared with the claim of one who has heritable absolute right in property. In the contention of Mr. Habibullah the Act of 1980 cannot be challenged and can be said to be at par with Privy Purse. He further contended that the petitioner is absolutely silent on Hazar Duari Palace and other properties of Murshidabad Estate in Murshidabad. On the above points the learned counsel submitted that the writ petition be dismissed.
21. I have given my considerate thought to the facts of the case and the submissions made by the learned counsel of the parties and also perused the entire record. The Indenture dated 12th March, 1891 made between the Secretary of State for India-in-Council and Intisham-ul-Mulk Rais-ud-Dowlah Amir-ul-Omrah Nawab Sir Syed Hussan Ali Khan Bahadoor Mohabat Jung, Nawab Bahadoor of Moorshedabad, eldest son of His late Highness Moontazim-ul-Mulk Mohsen-ud-Dowlah Fureedoon Jah Syed Monsoor Ali Khan Bahadoor Nusrut Jung, late Nawab Nazim of Bengal, Behar and Orissa was enacted as the Moorshedabad Act, 1891. The purpose of the enactment of the Moorshedabad Act, 1891 was to confirm and give effect to the aforesaid Indenture and the said Act came into force at once. Before the Act of 1891 came into farce, by a registered Deed of Gift made on 14th January, 1874 the Nawab Nazim of Bengal, Behar and Orissa abdicated and relinquished his right, title and interest to the Nazimship of Bengal, Behar and Orissa in favour of his eldest son Syed Hassan Ali. Whatever be the recitation and the contents of the Indenture of 1891, S. 5 of the Moorshedabad Act, 1891 relating to perpetual descend of property says that all moveable and immoveable properties mentioned in the said Indenture or any addition from time to time to the schedules of the property "shall descend and, subject to the provisions of the said Indenture, be enjoyed for ever by the Nawab Bahadur of Moorshedabad for the time being." S. 3 of the Act of 1891 further clarifies the position by stating that the properties as contained in the Indenture and to be acquired from time to time are meant "for the maintenance of the position and dignity of the Nawab Bahadoor of Moorshedabad for the time being." The entire Indenture of 12th March, 1891 is included in the Schedule of the Moorshedabad Act of 1891. It appears that the Nawab Nazim's Debts Act, 1873 was enacted to settle dispute to certain jewels and immoveable property as to whether they belonged absolutely to the said Nawab Nazim or were held by the Government of India for the purpose of upholding the dignity of the Nawab Nazim for the time being, and the litigations by the creditors of the Nawab Nazim which crept up with the Government of India. The Commissioners were appointed under the Act of 1873 to assess the jewels and the immoveable property held by the Government for the purpose of upholding the dignity of the Nawab Nazim and the Commissioners were also directed to assess the debts and liabilities incurred by the said Nawab Nazim in India. Ultimately the Government of India according to the recommendation of the Commissioners paid the debt of the Nawab Nazim assessed around Rs. 17 lakhs and further a sum of Rs. 10 lakhs was paid to the Nawab Nazim in full satisfaction and discharge of his personal claims "of what nature or kind so ever against the Government of India whether connected with or arising out of the Nizamut or otherwise." The Commissioners appointed under the Act of 1873 also certified and declared that the immoveable property and jewels as specified in Schedules I, II and V of their report were State property and they annexed the said report with a schedule being Schedule IV. On the abdication of the last Nawab Nazim in 1974 (who died in 1884) the Viceroy and the Governor-General by a Sanad dated 17th Feb., 1882 granted to Syed Hussan Ali the title of the Nawab Bahadoor of Moorshedabad and on 20th July, 1987 a further title of Amir-ul-Omrah was conferred. The said titles carried the precedents, rank, dignity and privileges of the premier nobel of the provinces Bengal, Bihar and Orissa and were descendible to the lineal heirs male of the said Nawab Bahadoor according to the custom of primogeniture; the eldest male of the eldest branch being preferred. The Indenture further contained that "the Nawab Bahadoor and such one among his lineal heirs male as may be successively entitled to hold the titles in perpetuaty with the subject to the incidents, powers, limitations and conditions as to inalineability and otherwise hereinafter contained .........." It was made clear that the Nawab Bahadoor nor shall any of his successors in the said titles sell, mortgage, devise or alineate the said properties respectively or any of them otherwise than by lease or demise the terms and conditions of which have been previously approved by the Governor of Bengal-in-Council (the words underlined were substituted for the words "for a term not exceeding twenty-one years and under a rent without bonus or salamee" by Act XXV of 1923).
22. Before I deal with the vital issues revolving round the Murshidabad Estate (Trust) Act, 1963 and directly hitting the Murshidabad (Management of Properties) and Miscellaneous Provisions Act, 1980, I like to say a few words about the constitutional powers of the State Legislature to enact a legislation repealing an Act passed by the Central Legislature. The omission of Articles 291 and 362 of the Constitution of India by the Constitution (26th Amendment) Act, 1971 abolished the privy purse and privileges of the rulers of Indian States. The privy purse and privileges were there under the Government of India Act, 1935 but Section 296 of the said Act of 1935 contained a proviso that a competent legislature could amend or vary etc. the provisions of a Central Act i.e. including the Moorshedabad Act, 1891. No doubt there was a legal battle on the abolition of the privy purse and privileges and one thing the Supreme Court specifically spelt out in the case of H.H. Maharajadhiraja Madhav Rao Jivaji Scindia Bahadur v. Union of India as follows:-- "Recognition of Rulership is not a legal right. It is not a right to property. Privy purse is not a legal right to property. There is no fundamental right to Privy Purse, There is no fundamental right to rulership." The Nawab Bahadurship of Murshidabad falls much below the rulership as referred to by the Supreme Court. It may be mentioned in this connection that Article 372 of the Constitution has a provision similar to Section 296 of the Government of India Act, 1935 and Section 18(3) of the Indian Independence Act, 1947 for continuance of the Moorshedabad Act, 1891 until altered or replaced by a competent legislature. Article 372(1) states that "all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by, a competent Legislature or other competent authority." By virtue of this Article the State Legislature of West Bengal is fully competent to repeal or alter the Moorshedabad Act, 1891 and as such I am not going to examine the cases cited by Mr. Bose in support of his contention on this point as I accept his submission, and this point is decided in favour of the respondents.
23. The writ petition directly hits the Murshidabad Estate (Management of Properties) and Miscellaneous Provisions Act, 1980 and the only substantial prayer in the writ petition is to declare the said Act as ultra vires and void. The argument of Mr. Das on the point has been that this piece of legislation is arbitrary, unreasonable and contrary to the rule of equality which is violative of Article 14 of the Constitution. According to him Article 14 is of the basic structure of the Constitution and right of equality before law or equal protection of law is a fundamental guarantee under the Constitution. But I must state that the principle of equality does not mean that every law must have universal application for all who are not by nature, attainment or circumstances, in the same position, as the varying needs of different classes of people often require separate treatment, , Kedar Nath v. State of West Bengal. The principle as laid down by Article 14 does not take away from the State the power of classifying persons for legitimate purposes within reasonable permissible limit Charanjit Lal v. Union of India, . The case upon which Mr. Das made much emphasis is the judgment delivered by His Lordship Mr. Justice Bhagabati Prasad Banerji in C.R. No. 1409 (W) of 1983 between Syed Fateyab Ali Meerza (also the petitioner in this writ petition) v. Union of India reported in 1989(1) CLJ 214. The said writ petition related to West Bengal Land (Requisition and Acquisition) Act, 1948 and the petitioner was granted relief. But it was made clear by His Lordship that a taw made by the Parliament or a Legislature of State cannot be superseeded by any authority subordinate to the Legislature on the strength of a statutory order. Here I find no such thing; the State Legislature has repealed the Act of 1963 and enacted the Act of 1980. It is further stated in the said judgment that in accordance to the provisions of the Act of 1963, the premises No. 85, Park Street, which forms part of Murshidabad Estate was to be used and occupied solely by the successor of Nawab of Murshidabad and thereafter His Lordship said, "it may be mentioned that at present the title of Nawab had not been conferred on anybody. The petitioner is one of the claimants of such title." Merely a claim does not confer any right or title and the records of the instant writ petition contains a letter dated 18th December, 1989 sent to the petitioner under registered post with A/D by the Director (Judl.), Ministry of Home Affairs, Government of India, New Delhi, stating, inter alia, as under:--
"3. In this case the title and right to claim annuity last devolved on Sri Syed Waris Ali Meerza to the exclusion of his two brothers, Waris branch being the eldest. The branches of the two brothers having been excluded, title and right of annuity must devolve for all time in future to the exclusion of those branches and the right can devolve only on The lineal male descendant of Sri Syed Waris Ali Meerza. The elder son of Sri Syed Waris Ali Meerza is a foreign citizen and is ineligible for the title or the annuity.
4. In view of the aforesaid, I am directed to convey the decision of the Government of India that there is no question of the title or the property or other rights reverting to you."
This particular letter conveying the decision of the Government of India was never challenged by the petitioner by any Supplementary Affidavit in the instant writ application and stands final. If the two brothers of Waris Ali Meerza, the last Nawab, have been excluded then save and except as beneficiary in a limited sense under the Act of 1980 the petitioner has no other right. One thing Mr. Justice Banerji made clear in his judgment that under the Act of 1963 the sons and daughters of the late Nawab Bahadur are the beneficiaries of the said properties and under Section 6 of the said Act the residential premises was allotted for being used by the sons and daughters as indicated therein. But it must be borne in mind that the Act of 1963 upon which these observations were made is no more in existence and stands repealed by the new Act of 1980 but the provision of Section 6 of the Act of 1963 is retained in Section 10 of the Act of 1980 in a dubious way.
24. The preamble of the Murshidabad Estate (Trust) Act, 1963 is of importance while deciding the matter and it is quoted as under:--
"Whereas it is no longer necessary in the altered circumstances to make provisions for the maintenance of the honour and dignity of the Nawab Bahadur of Murshidabad;
And whereas the late Nawab Bahadur of Murshidabad expressed a desire that on his death a trust should be created in respect of all the properties enjoyed by him for the benefit of his sons and daughters;
And whereas it is necessary to give effect to the said desire of the late Nawab Bahadur of Murshidabad and to that end to create, a trust in respect of the properties of the Murshidabad Estate."
The assent of the Governor to this Act of 1963 was published in the Calcutta Gazette Extra-ordinary of 8th February, 1963. At that time Waris Ali Meerza was the third Nawab Bahadur of Murshidabad and the desire of the late Nawab Bahadur i.e. the second Nawab Wasif Ali Meerza was implemented by this piece of legislation and Waris Ali Meerza as it appears did challenge this Act but could not proceed because of his death. Section 2(5) defines "late Nawab Bahadur" as the person who was Nawab Bahadur immediately before 23rd October, 1959, this obviously refers to Wasif Ali Meerza; Section 2(7) defines "Nawab Bahadur" as the Nawab Bahadur of Murshidabad for the time being' and Section 2(9) defines "present Nawab Bahadur" as the son of the late Nawab Bahadur who succeeded to the titles of the Nawab Bahadur of Murshidabad and Amir-ul-Omrah i.e. Waris Ali Meerza. Further Section 2(10) defines "properties of Murshidabad Estate" moveable and immoveable as specified in the Schedule of this Act. Let me point out here that the Schedule under Section 2(10), inter alia, refers to the move-able and immoveable property of the Murshidabad Estate as contained in the Indenture of 1891 and confirmed by the Moorshedabad Act, 1891 including the Schedules of properties annexed thereto as well as the additional immoveable properties under Section 3(1) of the Act and Section 32 of the Land Acquisition Act, 1894. The Schedule of the Act of 1891 mentions premises No. 47, Park Street (now 85, Park Street), Calcutta. This means that the whole of the Murshidabad Estate was turned into a trust by virtue of the Act of 1963 leaving no right to anybody save as provided by the Act itself. Under Section 5(3) the allowances payable under sub-clauses (ii) and (iii) of clause (c) of sub-section (i) shall be heritable in accordance with the law for the time being applicable to the family of the Nawab Bahadur of Murshidabad. Section 6 of the Act made allotments of residential houses and Wasif Manzil Palace at Murshidabad and premises No. 85, Park Street, Calcutta, were allotted to Waris Ali Meerza who was then the Nawab Bahadur; Moti Mahal at Murshidabad was allotted to Syed Kazem Ali Meerza, one of the sons of the late Nawab Bahadur, and Mahal Sarah (Amir Mahal) at Murshidabad to be occupied jointly by other sons and daughters of the late Nawab Bahadur. Section 6(i) exclusively provided Wasif Manzil Palace of Murshidabad and premises No. 85, Park Street, to the third Nawab Waris Ali Meerza purely for use and occupation as appears from the Section excluding alt others i.e. brothers, sons and daughters of the late Nawab Bahadur. Here I like to point out that Sections 5 and 6 of the Act of 1963 are vital in determining the monthly allowance and residential accommodation of the petitioner. The major effect, of the Act of 1963 was that the entire Murshidabad Estate vested in the Trustee to be held for the benefit of the sons and daughters of the late Nawab Bahadur.
25. Now comes the Murshidabad Estate (Management of Properties) and Miscellaneous Provisions Act, 1980 which received the President's assent and published in the Calcutta Gazette Extraordinary of 11th March, 1981. The preamable of this Act is quoted as under:--
"Whereas the fulfilment of the purpose of the trust created by the Murshidabad Estate (Trust) Act, 1963 has become impossible as the expenditure on account of management and administration, under that Act, of the properties of the Murshidabad Estate (including the expenditure on account of recurring liabilities) exceeds the income from such properties and as such the said trust stands extinguished;
And whereas it is considered necessary and expedient to provide for the management of the properties of the Murshidabad Estate and for matters connected therewith or incidental thereto."
This Act came into force on 1st August, 1985 and the delay was due to some administrative reasons. By virtue of Section 3 of the Act of 1980 the properties of the Murshidabad Estate is to transfer to and vest in the State of West Bengal and the said Section also empowered the State Government to take steps for securing the possession thereof, if it considers necessary. Section 6 of the Act of 1980 indicates that the management and administration of the Murshidabad Estate shall be done on behalf of the State Government by the Estate Manager. Section 10 of the said Act speaks of alternative accommodation for bona fide residential purposes to be provided to such surviving sons and daughter of the late Nawab Bahadur as are beneficiaries under the Act of 1963 and are to he evicted under Section 9 i.e. unauthorised occupants. Section 10 also contains a proviso that alternative accommodation would be provided for bona fide residential purposes to the sons and daughter of the late Nawab Bahadur provided they do not have any pucca house in West Bengal at the commencement of this Act. Section 12 relates to income from the Estate properties and specifies that if any amount out of the income after meeting the liabilities (as mentioned therein) are left then it shall be paid to such surviving sons and daughter of the late Nawab Bahadur as are beneficiaries under the Act of 1963 monthly allowances at such rate and in such manner as may be prescribed. But the proviso indicates that no such allowances should be paid to the beneficiaries where their income exceeds Rs.10,000/- annually.
26. Now let me discuss some of the decisions cited by Mr. Das, the learned Counsel for the petitioner, in support of his contention. The case of Basantibai Fakirchand Khetan v. State of Maharashtra (supra) relates to the deletion of Article 31 from the insertion of Article 300A in the Constitution. Here the Supreme Court said that it cannot be said that concept of reasonableness should not be imported in cases where protection of Article 14 is not available and the constitutional obligation to pay adequate amount to expropriated owner is not thereby taken away. But in the instant case where is the ownership in the real sense of the term. The Full Bench decision of Calcutta High Court in the case of Lakshmi Moni Das v. State of West Bengal (supra) related to the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 struck down a few sections of the said Act. Section 27 of the said Act was held ultra vires on the ground that a wide and arbitrary power has been conferred on the officers of the State Government to deal with any property vested or resumed under the Act without paying any compensation and without drawing up any proceeding whatsoever.
But whether this decision hits the present case is a matter of consideration. Nobody has been deprived of any property as the Murshidabad Estate was not the personal property of anybody. Again the decision (supra) deals with the matter of compensation. The Supreme Court in this case says that a particular legislation is a colourable one when the Legislature has transgressed its legislative powers in a covert or indirect manner, it adopts a device to out step the limits of its powers. Whether the Act of 1980 is a colourable legislation shall be disclosed from my discussion of the case. It is the contention of Mr. Das that the decision in (supra) on the point that the compensation must be paid for compulsory acquisition of private property was upheld and the decision of the Bombay High Court was reversed on a totally different point. The compulsory acquisition of private property is something totally different from the vesting of the Murshidabad Estate.
27. Of course a question has been raised by Mr. Das that there is no definition in the Act of 1980 of "unauthorised occupant", and in this connection he has cited the famous Goonda case of State of Madhya Pradesh v. Baldeo Prasad (supra) wherein the Supreme Court held that the Legislature contemplating preventive action against goondas and the absence of guidance or assistance in the Statute in deciding who can be put in the category of goonda leads the whole act, to be invalid. His contention on this point with regard to the Act of 1980 deserves consideration. It is also submitted by the learned Counsel that no right of appeal against any order or decision of the Estate Manager has been provided in this Statute and as such the person who would be alleged as an 'unauthorised occupant' shall be completely at the mercy of the decision of the Estate Manager without having any right to appeal to any higher authority. In this connection he cited two decisions in the case of Satwanta Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer (supra). The question centred round the point whether the act of the respondents in refusing to issue the passport infringed the petitioner's fundamental right under Article 14 of the Constitution. The said Article clearly stales that the State shall not deny to any person equality before the eye of law or the equal protection. This doctrine of equality before the law is a necessary corollary to the high concept of the rule of law accepted by our Constitution. Pointing towards the Passport Officer, the Supreme Court said that while in the case of enacted law one knows where he stood, in the case of unchallenged arbitrary discretion, discrimination was writ large on the face of it and such a discretion patently violated the doctrine of equality, for the difference in the treatment of persons rested solely on the arbitrary selection of the executive. The Supreme Court rejected the submission of the respondents that the discretionary power of a State is a political or diplomatic one and does not make anytheless an executive power and upheld that the refusal of issuing the passport offends Article 14. The decision in Hamdard Dawakhana v. Union of India (supra), in my opinion, does not require any further consideration in the face of the first mentioned decision. It has also been challenged that uncanalised powers without guidelines have been given to the Estate Manager to conduct the affairs of the Murshidabad Estate. In reply to this, the Counsel for the State Government handed over the Court the Calcutta Gazette Extraordinary of 1st August, 1985 containing four Notifications all of 1st August, 1985 where some definitions have been spelt out. I find no guidelines of action for the Estate Manager nor any provision of appeal. I have already pointed out that no provision of appeal appears in the said Act itself. The learned Counsel has cited another case of Senior Supdt. of Post Office v. Izhar Hussain (supra) to emphasise that executive instructions cannot modify or amend statutory provision, Here Rule 2(2) of the Liberalised Pension Rules, 1950 empowered the Government to order premature retirement. This, the Supreme Court stated, gives absolute discretion to the Government without any guideline and as such executive instructions cannot modify or amend statutory provision. So far as the contention on guideline is concerned it appears weighty and the legis-
lation on this point seems to be defective. Mr. Das has also referred to my decision in Maula Bux v. State of West Bengal, . I must say that the very basis of this decision was on a completely different footing and the facts were totally different but yet in principle it helps the petitioner. Mr. Das also cited the decision (supra) to bring home the point that the State cannot perpetualy manage properties of a private citizen but the question of management of properties of a private citizen does not arise in this case.
28. So far as the question of locus standi has been raised by referring the decision of S.P. Gupta v. President of India (supra), the concept of locus standi has been accepted in a public interest litigation. In this case the petitioners were the practising lawyers and raised important questions relating to independence of judiciary and the Supreme Court held in their favour. I agree with Mr. Das that a bare interest of minimum nature gives locus standi to file writ petition. But here the writ petitioner is a member of the Murshidabad family and as such he has no locus standi to claim compensation of the properties vested in the State as personal properties. Of course, he has a right to challenge the vires of a statute.
29. The argument of Mr. Habibullah, the learned Counsel for the State of West Bengal, impressed me so far as it dealt with the question of vesting of the property of Murshidabad Estate which according to the State is not the personal property of the petitioner. I am of the opinion that Sections 3 and 5 of the Moorshedabad Act of 1891 are vital in coming to this conclusion which goes into the root of the right of the petitioner as claimed in the writ petition so far vesting and compensation is concerned. Section 3 of the Act of 1891 states that on the written request of the Nawab Bahadoor of Moorshedabad for the time being, add, in such form as the Governor-General in Council may think fit, to the schedules of the immoveable property which are annexed to the said Indenture (i.e. the Indenture dated 12th March, 1891) any additional immoveable property which may be acquired from time to time for the maintenance of the position and dignity of the Nawab Bahadoor of Moorshedabad for the time being. The Schedule as referred to in Section 3 includes all the properties of the Murshidabad Estate including the property situate at premises No. 47, Park Street (now premises No. 85, Park Street), Calcutta, which, in fact, is the crown jewel of this litigation. Further Section 5 is very clear on the perpetual descend of the properties or any one of them shall descend and be enjoyed for ever by the Nawab Bahadoor of Moorshedabad for the time being.
30. It is totally unjustified on the part of the State to put an embargo upon the allowances of the beneficiaries of the late Nawab Bahadur i.e. Wasif Ali Meerza providing conditions and proviso in Section 12 of the Act of 1980. The Act of 1963 very specifically provided that a sum of Rs. 2,000/- per month each shall be paid to all the sons and daughter of the late Nawab Bahadur (including the then Nawab Bahadur) and these allowances shall be heritable in accordance with the law for the time being applicable to the family of the Nawab Bahadur of Murshidabad. But Section 12 of the Act of 1980 took away the allowance of Rs. 2,000/- per month which was guaranteed under Section 5(1)(c)(ii) of the Act of 1963 and was also made heritable under Section 5(3) of the said Act. When the trust was created at the desire and the wish of the late Nawab Bahadur for the benefit of his sons and daughter as beneficiaries, (though the Murshidabad Estate itself was not heritable as discussed above) the imposition of Section 12 in the Act of 1980 is totally against the principles of natural justice.
31. Before I conclude the judgment I like to refer to paragraph 2 of the writ petition where a genealogical table has been given by the petitioner showing his descend from Ferdoon Jah Mansoor Ali but the table is incorrect so far as Waris Ali Meerza, the third Nawab, is concerned. It is admitted by the petitioner Fateyab Ali Meerza that his late brother Waris Ali Meerza married a Jewess woman and had two sons from her, Akhtar Jah Syed Wakif Ali Meerza alias Sunnu and Syed Wakar Ali Meerza alias Chippu, who are residents of the U.K. and are British citizens. They are also non-Muslims by faith and by a Deed dated ,9th July, 1963 their father Waris Ali disinherited the two sons, Sunnu and Chippu. He further claims that by the custom of primogeniture under Shia system of Muslim religion as both the sons are non-Muslims and not of Shia sect, they are absolutely disentitled to the rights and titles and as such the petitioner being the direct eldest lineal male descendant and the next immediate brother of the late Waris Ali has succeeded to the title of Nawab Bahadur of Murshidabad and Amir-ul-Omrah and is entitled to the annuity and the privileges as secured under the Act of 1891. The above contention of the petitioner is untenable in law. No one has the right to condemn a person with Muslim name as non-Muslim until and unless he or she renounces Islam as religion by his or her own pronouncement publicly. In the Muslim Law in general, a Muslim male may contract a valid marriage not only with a Muslim woman but also with a Kitabia i.e. a Jewess or a Christian; but, of course, under the Shia law a marriage between a Muslim male and non-Muslim female is unlawful and void. In spite, it must be noted that a Muslim Shia male may contract a valid Muta (temporary) marriage with a kitabia. This is the settled point of law (vide F. Badruddin Tyabji's Muslim Law, 4th Ed., 1968, p. 86). It may also be noted that a marriage with Jewess woman is valid among Usuli and Mutazala Shias and Akhbari and Ithna Ashari Shias according to a decision of the Pakistan Supreme Court (vide Ali Nawaz v. Mohd. Yusuf, All Pakistan Legal Decisions 1963 SC 51). As to the question of right of inheritance, it is generally said that Muta marriage creates no right but according to the authors of the Sharaya-ul-Islam and the Tahrir-ul-Ahkam, a stipulation of this nature has no effect "according to the best report". While another body of Muslim jurists hold that when there is an express condition, the parties are entitled to inherit to each other. But so far as "the children born of such an union are, without difference of opinion, legitimate and inherit from their parents like the issue of a permanent contract" (vide Syed Ameer Ali's Mahommedan Law, Vol.II, 5th Ed., 1985 p. 400). The succession to the Nawabship is not so easy unless the fate of the two sons of the second Nawab Waris Ali Meerza, Sunnu and Chippu, is decided by a competent Civil Court on evidence and the Writ Court has no jurisdiction to decide whether the two sons of Waris Ali Meerza are legitimate sons or not and thereafter comes the question whether they are Indian or British citizens. I also doubt the legality of the registered Deed of Disinheritence of 9th July, 1963. This too requires a test in a Civil Court. Further more, even if the petitioner succeeds at any stage at the fag end of his life (he is 84) in a civil suit he will have to face the same question of succession to the title as discussed hereinbefore. I also want to point out that the law of primogeniture upon which he is harping will be of no effect unless he surmounts the aforementioned difficulties which appear a remote possibility.
32. I must say that the petitioner Fateyab Ali Meerza adopted nefarious means to establish himself as the Nawab Bahadur of Murshidabad by filing before the Court a Supplementary Affidavit affirmed on 23rd February, 1990 annexing a Notification dated 2nd February, 1990 as if issued by the Ministry of Home Affairs, Government of India, recognizing Syed Fateyab Ali Meerza as Nawab Bahadur of Murshidabad with effect from 2nd February, 1990 until further orders. This was vehemently denied by the Government of India as an unauthentical and ingenume document not issued by the Government of India. Thereafter the petitioner by affirming an affidavit dated 29th March, 1990 tendered unqualified apology to the Court for submitting the aforesaid Notification which was refused. I have in my order dated 3rd April, 1990 dealt with the entire matter and referred the same to the Central Bureau of Investigation and the matter is under investigation by the C.B.I., at present. As such so far as the fake notification is concerned I do not want to say anything further save and except what I have already said in my above order.
33. I have come to the conclusion that certain provisions of the Murshidabad Estate (Management of Properties) and Miscellaneous Provisions Act, 1980 are contrary to the rule of equality as contained in Article 14 of the Constitution and are prima facie void. On the points of vesting and compensation I decide in favour of the State of West Bengal. But on the points of unguided, uncanalised and unchartered power of the Estate Manager under the Act of 1980 as well as the absence of any definition of unauthorised occupants and the Estate Manager's right of eviction without any right to appeal to the higher authority against his order, this Court accepts the contention of Mr. Das. Also there is betrayal in the Act of 1980 of providing allowances to the surviving sons of the late Nawab Bahadur i.e. Wasif Ali Meerza as beneficiaries from the Murshidabad Estate which was guaranteed under the Murshidabad Estate (Trust) Act, 1963. But now it has been put under Section 12 of the Act of 1980 with condition precedent which means the intention of the State is to deprive the beneficiaries of their legitimate dues as beneficiaries. So far the petitioner is concerned he is no doubt one of the beneficiaries of Wasif Ali Meerza, the second Nawab Bahadur, being his second son, and his right of allowance is heritable.
34. In that view of the matter the writ application succeeds in part. I strike down Sections 9, 10 and 12 of the Murshidabad Estate (Management of Properties) and Miscellaneous Provisions Act, 1980 as ultra vires the Constitution. I further restrain the State respondents from enforcing or implementing Section 11 of the said Act of 1980 until rules are properly framed under Section 15 of the said Act for the proper administration of the Murshidabad Estate with definite guidelines to the Estate Manager and until the provision of appeal is made in the said Act by suitable amendment. I, however, give liberty to the: Estate Manager to run the day-to-day administration and management of the Murshidabad Estate properties including performance of religious functions and payment of taxes but he shall not take any major policy or administrative decision.
35. I further hold that the petitioner is not entitled to any compensation from the State of West Bengal in respect of the vested properties as the Murshidabad Estate right from enforcement of the Moorshedabad Act, 1891 was neither heritable nor private in nature.
36. I further direct that the petitioner Feteyab Ali Meerza who is a beneficiary of the Murshidabad Estate shall receive a sum of Rs. 2,000/- per month as allowance with all arrears since the date when the Murshidabad Estate (Trust) Act, 1963 came into force, and shall pay the said sum of Rs.2,000/- per month, month by month, by the 10th of each succeeding month regularly, and first such payment shall be made by 10th January, 1991 for the month of December, 1990. All arrears of the said allowance as mentioned above should be paid to the petitioner by 31st May, 1991 after deducting the amounts, if any, paid in the meantime. The possession of the petitioner in the building at premises No. 85, Park Street, Calcutta, where he is presently residing shall not be disturbed till 31st December, 1991 provided the entire amount of arrears is paid to him in full. If the said arrears are not paid within the time specified the possession of the petitioner shall not be disturbed even after 31st December, 1991 until the said amount is paid. The State Government shall provide an alternative accommodation befitting to the status of the son of the late Nawab Bahadur of Murshidabad and Amir-ul-Omrah and the said accommodation should be equivalent to the position of a senior I.A.S. officer's rank in Calcutta free of all charges for the rest of the petitioner's life only. He should be given reasonable time to shift to the quarter to be provided by the Government, I make it clear that by the possession of the building at premises No. 85, Park Street, I mean the structure of pucca building only, excluding the lawn in front of the said premises.
37. The State Government shall be at liberty to take appropriate action against other occupants in accordance with law after first complying with my order and making the necessary amendment in the Statute as well as framing the rules and guidelines. The egress from and ingress in the said building must not in any way be obstructed or disturbed,
38. The writ application is allowed in part as indicated above. There will be no order as to costs.
39. The writ application has been disposed of as above but the matter remains pending in this Court in view of my order dated 3rd April, 1990 and the direction of the Division Bench in connection with the C.B.I. inquiry.
40. Let xerox copy of the judgment be made available to the parties on usual undertaking and upon compliance of necessary formalities.
41. Order accordingly.